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Future of Initiative and Referendum in Missouri, The Missouri Law Review Volume 48 Issue 4 Fall 1983 Article 5 Fall 1983 Future of Initiative and Referendum in Missouri, The John Slavin Follow this and additional works at: https://scholarship.law.missouri.edu/mlr Part of the Law Commons Recommended Citation John Slavin, Future of Initiative and Referendum in Missouri, The, 48 MO. L. REV. (1983) Available at: https://scholarship.law.missouri.edu/mlr/vol48/iss4/5 This Comment is brought to you for free and open access by the Law Journals at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Missouri Law Review by an authorized editor of University of Missouri School of Law Scholarship Repository. For more information, please contact [email protected]. Slavin: Slavin: Future of Initiative and Referendum in Missouri COMMENT THE FUTURE OF INITIATIVE AND REFERENDUM IN MISSOURI I. INTRODUCTION ............................................. 991 II. DEBATE OVER INITIATIVE AND REFERENDUM ............... 993 III. M ISSOURI LAW ............................................. 997 IV. THE INITIATIVE AND REFERENDUM IN PRACTICE ............ 999 V. THE FUTURE OF STATE BALLOT ISSUES ..................... 1004 VI. PROBLEMS AND PROPOSALS ................................. 1010 VII. CONCLUSION ............................................... 1016 I. INTRODUCTION When Massachusetts voters go to the polls on November 2nd, they will not only elect public officials. They will also decide im- portant questions of public policy. These questions are very complex. They address issues of profound significance to the quality of our lives. They ask us to revise the constitution, make laws, and advise the legislature on important policy issues. Two hundred years ago, Massachusetts citizens fought and died for the right to govern themselves. Today we do not have to fight for the privilege, we need only exercise it.' Voters in many states receive notices like this. They are a reaction to the rapid growth of direct democracy-the determination of law by public vote.' The initiative and referendum 3 have become the primary vehicles 1. Guzzi, Forvard to COMMONWEALTH OF MASSACHUSETTS, 1976 VOTER IN- FORMATION PAMPHLET. For an explanation of the Massachusetts voter informa- tion statute, see note 180 and accompanying text infia. 2. See Bone & Benedict, Perspectives on DirectLegislation: Washington State s Expe- rience 1914-1973, 28 W. POL. Q. 330, 331 (1975). Direct democracy is a shorthand phrase for popular decision-making devices, including the town meeting and the initiative and referendum. 3. The term referendum may refer to the initiative and the referendum. Ini- tiatives originate with the people, while the referendum originates with the legisla- ture. See REFERENDUMS-A COMPARATIVE STUDY OF PRACTICE AND THEORY 4 (D. Butler & A. Ranney eds. 1978) [hereinafter cited as REFERENDUMS]. Simply defined, the initiative is a device whereby a prescribed number or percent of qualified voters, through the use of a petition, may have an amendment or legislative proposal placed on the ballot for adoption or Published by University of Missouri School of Law Scholarship Repository, 1983 1 Missouri Law Review, Vol. 48, Iss. 4 [1983], Art. 5 MISSOURI LAW REVIEW [Vol. 48 for direct democracy. Prior to 1982, Missourians had rarely voted on more than five initiatives and referendums in a single election year.' In 1982, voters decided eighteen state issues.5 Nationwide, voters at the state and local level face an estimated ten to fifteen thousand issues each year.6 This 7 Comment will examine the problems with the initiative and referendum, and analyze their use in Missouri. Direct democracy is rooted in the ancient Greek city-states, and the Romans employed the referendum as a plebiscite.8 Issue elections have also been employed by totalitarian governments.9 American adoption of the referendum can be attributed in part to its use in Switzerland after 1848."0 Direct democracy first appeared in the United States through the New Eng- land town meeting, where citizens voted directly on community issues.1 As populations grew, however, local meetings became impractical and elec- tions arose to deal with major issues more effectively. 12 The initiative and referendum each have two sub-categories: constitu- rejection by the electorate .... The referendum, on the other hand, is a means by which decisions of legislative bodies do not become public poli- cies until the electorate votes its concurrence with the policies and accepts them by the required affirmative vote. G. BLAIR, AMERICAN LEGISLATURES: STRUCTURES AND PROCESS 306 (1967). See generally THE INITIATIVE REFERENDUM & RECALL (W. Munro ed. 1913). 4. In 1922, 16 initiatives and referendums appeared on the Missouri ballot. R. KARSCH, THE GOVERNMENT OF MISSOURI 124-26 (14th ed. 1978). Twenty-one constitutional amendments were offered at the special election of February 26, 1924. 8 BALLOT BANTER 1 (1982) (available from the Missouri Secretary of State's Office). 5. These issues were decided in four elections: General Election: November 2, 1982; Special Elections: August 3, 1982; June 8, 1982; April 6, 1982. 6. Hamilton, Direct Legislation: Some Implications of Open Housing Referenda, 64 AM. POL. SC. REV. 124, 125 (1970). 7. Both referenda (Latin) and referendum (Anglosaxon) are correct, but current authority favors the latter. See REFERENDUMS, supra note 3, at 4. 8. Id at 5; Note, Initiative and Referendum-Do They Encourage or Impair Better State Government, 5 FLA. ST. U.L. REV. 925, 937 (1977). 9. Hitler used the plebiscite to proudly exhibit 99% public approval. REFER- ENDUMS, supra note 3, at 3. Many dictatorships use the referendum at least occa- sionally. Id at 8. 10. See id at 5. Although used at the end of the Middle Ages by many of the Swiss cantons, direct democracy was suppressed during the 17th and 18th centuries. See J. Aubert, Switzerland, in REFERENDUMS, supra note 3, at 39. The referendum was used in Switzerland to deny the franchise to women for many years. More Refer- endums?, ECONOMIST, March 6, 1976, at 11, 12. 11. Scott &Nathan, PublicReferenda-A CriticalReappraisal, 5 URB. AFF. Q. 313, 314 (1970). 12. Constitutional amendments were first used in 1779 in Massachusetts. The first statewide initiative was implemented in South Dakota in 1898. Ranney, The United States of America, in REFERENDUMS, supra note 3, at 67, 69. https://scholarship.law.missouri.edu/mlr/vol48/iss4/5 2 Slavin: Slavin: Future of Initiative and Referendum in Missouri 1983] INITIATIVE AND REFERENDUM tional and statutory. 3 Most elections involve the referendum. The consti- tutional referendum, the most popular form of direct legislation, is used in all but one state. 4 The second most popular form is the statutory referen- dum. Thirty-nine states employ it in some form, and twenty-four states, including Missouri, also allow citizens to petition the legislature for popular votes on legislative enactments. 5 In the other fifteen states, the legislature must initiate the popular vote. 6 The third most popular form is the statu- tory initiative, used in twenty-two states. Fifteen of these states allow the public to vote directly on proposals once the required signatures are ob- tained.' 7 The other seven states have an indirect version, where the propo- sal is first sent to the legislature.' If the measure fails, it is put before the public. The least utilized form of direct legislation is the constitutional ini- tiative, recognized in only fourteen states.' II. DEBATE OVER INITIATIVE AND REFERENDUM Authorities on the democratic process disagree on whether the initia- 13. Some commentators subdivide the categories to include the advisory and indirect initiative. See Price, The Initiative: A Comparative State Anaoysis and Reassess- ment of a Western Phenomenon, 28 W. POL. Q. 243, 246 (1975). One commentator has divided the referendum into four categories, including the compulsory, the advi- sory, the legislative, and the petition. See Gazey, Direct Democra y-A Study of the American Referendum, 24 PARLIAMENTARY AFF. 123, 125 (1971). 14. Delaware is the only state that does not submit constitutional amendments to its voters. See Ranney, supra note 12, at 70; CONGRESSIONAL RESEARCH SERV- ICE, LIBRARY OF CONGRESS, INITIATIVE, REFERENDUM AND RECALL: A RESUME OF STATE PROVISIONS 2 (1976) [hereinafter cited as RESUME]; see, e.g., ALA. CONST. art. XVIII, § 284; COLO. CONST. art. 5, § 1; ILL. CONST. art. XIV, § 2; MD. CONST. art. XIV, § 2; MO. CONST. art. XII, § 2(a); N.Y. CONST. art. 19, § 1; PA. CONST. art. XI, § 1; R.I. CONST. art. XLII, § 1; VT. CONST. ch. 11, § 68; VA. CONST. art. XII, § 1; WASH. CONST. art. XXIII, § 1. 15. The petition must be submitted within a certain time, usually 90 days, after the legislature has adjourned. See, e.g., CAL. CONST. art. 4, § 23(b); COLO. CONST. art. 5, § 1; MASS. CONST. amend, art. 48, pt. 3, § 4; Mo. CONST. art. III, § 49; OHIO CONST. art. II, § 1(c); WASH. CONST. art. II, § 1. 16. See, e.g., FLA. CONST. art. 6, § 5; ILL. CONST. art. IX, § 9; N.C. CONST. art XIII, § 4; PA. CONST. art. 3, § 28; R.I. CONST. amend. XXI, § 1; VA. CONST. art. X, § 9; WIS. CONST. art. 8, § 7(e), (g). 17. See, e.g., ALASKA CONST. art. II, § 6; ARIZ. CONST. art. 4, pt. 1, § 1, art. 22, § 14; Mo. CONST. art. III, § 49; NEB. CONST. art. III, § 2; N.D. CONST. art. II, § 1; WASH. CONST. art II, § 1(a); WYo. CONST. art. III, § 52. 18. See, e.g., FLA. CONST. art. 6, § 5; ME. CONST. art. 4, pt. 3, § 18; MASS. CONST. amend, art. 74, § 1; MICH. CONST. art. 2, § 9; NEv. CONST. art. XIX, § 2; OHIO CONST. art. II, § 1(b); S.D. CONST. art. III, § 1. 19. See, e.g., ARK. CONST. § 2-200; CAL. CONST. art. 18, § 3; COLO. CONST. art. 5, § 1; FLA. CONST. art. 11, § 3; MO. CONST. art. III, § 49; OKLA. CONST. art. 5, § 1; OR. CONST.
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